Horowitz and Cole and Anor - [2014] FamCA 222

FAMILY COURT OF AUSTRALIA

HOROWITZ & COLE AND ANOR

[2014] FamCA 222

FAMILY LAW – CHILDREN – Where the mother did not attend at the hearing – Where the Court proceeded to hear the matter in the mother’s absence in light of the history of the proceedings, the circumstances of the children and Rule 16.07 of the Family Law Rules (Cth) – Where the children were in the care of the Department of Family and Community Services at the time of the hearing – Where each parent presents risk factors – Where neither parent has presented with a parenting capacity for the Court to make an order for the children to live in their care – Where the Court is satisfied it is in the children’s best interests to remain in the care of the Department and for the Department to exercise solely parental responsibility for them – Orders made by consent of the father, the Department and the Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth) r 16.07

Duke-Randall & Randall [2014] FamCA 126
Goode and Goode (2006) FLC 93-286
Mazorski & Albright [2007] FamCA 520
SCVG & KLD [2014] FamCAFC 42

APPLICANT:

Mr Horowitz

RESPONDENT:

Ms Cole

INTERVENOR:

Secretary of the Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms Shirlaw

FILE NUMBER:

DUC

2011

DATE DELIVERED:

Orders on 25 March 2014; Judgment on 4 April 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Dubbo

JUDGMENT OF:

Foster J

HEARING DATE:

24 & 25 March 2014

REPRESENTATION

THE APPLICANT:	Self-represented Litigant
THE RESPONDENT:	No appearance

COUNSEL FOR THE INTERVENOR:

Mr Moore

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor's Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Dubbo

Orders

Parental Responsibility

All existing parenting orders are discharged.

Parental responsibility for the children X born … 2007, Y born … 2008 and Z born … 2009 (collectively “the children”) be exercised solely by the Minister for Family and Community Services (“Minister”) until they each attain the age of 18 years.

Live With

The children live as directed by the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate.

Spend Time With

The children spend supervised time with Ms Cole (“Mother”) on a minimum of four (4) occasions per year for a period of up to four (4) hours on each occasion, subject to Orders 5, 6, 11 and 12 of these Orders.

The time to be spent between the Mother and the children is to occur on such dates and at such times as are agreed between a delegate of the Secretary and the Mother and failing agreement, is to occur on a date and at a time as nominated by a delegate of the Secretary.

All time spent by the Mother with the children is to be supervised by a person deemed by the Secretary or his delegate to be an appropriate supervisor.

Unless otherwise agreed between the Secretary’s delegate and Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 222
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the matter of *Horowitz and Cole and Anor*, Foster J of the Family Court of Australia considered the parental responsibility and living arrangements for three children, X, Y, and Z. The dispute involved the parents, Ms Cole (the Mother) and Mr Horowitz (the Father), and the Minister for Family and Community Services, represented by the Secretary of the Department of Family and Community Services. The court was tasked with determining the future care and contact arrangements for the children, given the involvement of the state.

The central legal issues before the court were the extent of parental responsibility to be exercised by the Minister, the children's primary residence, and the nature and conditions of contact between the children and each of their parents. The court also had to consider the appropriate protective measures and injunctions to be put in place to safeguard the children's welfare, including restrictions on parental behaviour, communication, and proximity to the children and each other.

Foster J ordered that all existing parenting orders be discharged and that parental responsibility for the children be exercised solely by the Minister until they each turn 18. The children were to live as directed by the Secretary. Contact arrangements were significantly structured and supervised, with the Mother having supervised time a minimum of four times per year, and the Father having progressively increasing supervised contact, with specific conditions relating to drug and alcohol use, communication with the Mother, and attendance at certain premises. The court also imposed extensive injunctions on both parents, restraining them from various behaviours including drug and alcohol consumption, denigrating each other or the children, discussing proceedings with the children, exposing them to domestic violence, physically disciplining them, questioning them about carers, failing to take prescribed medication, harassing each other, and, for the Mother, from contacting or approaching the children or their residences. Both parents were also ordered to submit to random drug testing and inform the Secretary of any change of address. The court accepted an undertaking from Ms JJ regarding the children's care.

Orders

Orders of the court

Parental Responsibility

1. All existing parenting orders are discharged.

2. Parental responsibility for the children X born … 2007, Y born … 2008 and Z born … 2009 (collectively “the children”) be exercised solely by the Minister for Family and Community Services (“Minister”) until they each attain the age of 18 years.

Live With

3. The children live as directed by the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate.

Spend Time With

4. The children spend supervised time with Ms Cole (“Mother”) on a minimum of four (4) occasions per year for a period of up to four (4) hours on each occasion, subject to Orders 5, 6, 11 and 12 of these Orders.

5. The time to be spent between the Mother and the children is to occur on such dates and at such times as are agreed between a delegate of the Secretary and the Mother and failing agreement, is to occur on a date and at a time as nominated by a delegate of the Secretary.

6. All time spent by the Mother with the children is to be supervised by a person deemed by the Secretary or his delegate to be an appropriate supervisor.

7. Unless otherwise agreed between the Secretary’s delegate and Mr Horowitz (“Father”), or if the Father is in custody, the children shall spend time with their Father as follows:

a. Once per fortnight for a period of one month for one (1) hour;

b. Commencing May 2014, once per fortnight for a period of two (2) hours;

c. Commencing June 2014 once per fortnight for a period of three (3) hours;

d. Commencing July 2014, once per month for one (1) day between 10am and 4pm;

e. From October 2014, once per month from 4pm on a day agreed by the Secretary’s delegate and the Father and failing agreement, a day nominated by the Secretary, to 4pm on the next day;

f. Such other times as may be agreed between the Secretary’s delegate and the Father.

8. The time in Orders 7(a), (b) and (c) shall be supervised by a person deemed by the Secretary or his delegate to be an appropriate supervisor and shall occur on a date and at such times and locations as nominated by a delegate of the Secretary.

9.The time in Orders 7(d), and (e) shall take place at the home of the Ms JJ and shall occur in her presence.

10. The time in Order 7 is conditional upon:

a. The Father not consuming illicit drugs or being under the influence of alcohol whilst the children, or any of them, are spending time with him, or in the period 12 hours prior to the children spending time with them;

b. The Father not allowing the children to spend time or communicate with the Mother;

c. The children not attending the premises, Lot 1, BB Street, Town CC unless he obtains the prior written approval of the Secretary or his delegate;

d. The Father contacting the Secretary’s delegate 24 hours prior to the commencement of the time the children are to spend with him.

Injunction/Restraint

11. The Mother and Father are hereby each restrained by injunction from:

a. Consuming illicit drugs or being under the influence of alcohol whilst the children, or any of them, are spending time with them, and in the period 12 hours prior to the children spending time with them;

b. Abusing, insulting or denigrating the children, or any of the other parties, or a member of their family or household to or in the presence or hearing of the children and each party will use all reasonable efforts to ensure that anyone over who they have control or influence does not denigrate the other party, the other party’s partner, or members of the other party’s family in the presence or hearing of any of the children;

c. Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;

d. Exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children;

e. Physically disciplining or striking any of the children;

f. Questioning the children about the appropriateness of their carer or any carer’s partner’s behaviour or parenting while taking care of or spending time with the children;

g. Failing to take medication as prescribed by a medical practitioner;

h. The Mother and Father are restrained from approaching, harassing or intimidating one another; and

i. The Mother is restrained from contacting or communicating with the children or attending upon any school or extra-curricular activities the children attend or approaching any premises were the children from time to time reside or approaching within 100 metres of the premises where the children reside or spend time with their Father.

(12) The Mother and Father will submit to random urinalysis drug testing, no more than once per month, unless otherwise agreed, as directed by the Secretary or his delegate.

(13) The Mother and Father will inform the Secretary’s delegate of any change of residential address or telephone number within 7 days.

14. This Order provides authority for the Father to obtain any relevant information about the children’s health, education and development upon the Father requesting such information from the Secretary’s delegate including school reports and photographs.

15. The Court accepts the undertaking of Ms JJ, being Annexure A to the Orders made by the Family Court of Australia at Dubbo on 25 March 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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